The hand-book of the law of legacies / containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests

by Anonymous

REAL ASSETS.

Though real assets more often partake of an equitable character, that is, are subject to distribution according to the custom of a court of equity, yet, there are also real assets which are of a legal nature or subject to the rules of the common law. Until within a few years, real estate could not be touched for the satisfaction of debts of common specialty or simple contract; but that system is now obviated, and funds which have descended to the heir in fee simple, that is unentailed freeholds, and even an advowson so descended, may be appropriated to the benefit of specialty creditors. An estate pur autre vie, or an estate held upon the life of another, when there is no special occupant, goes, according to the statute of frauds, and if does not it descend to the heir through occupancy, will fall to the executor and be assets in his hands for the satisfaction of claims, and by the 14 Geo. II., c. 20 will be appropriated like any other chattel interest. An estate pur autre vie in incorporeal hereditaments—as a rent, for instance, granted by one person to another, during the life of a third party, and the grantor of which dies during the life-time of the person who holds the property—goes to the executor.

“A., tenant for three lives to him and his heirs, assigned over his whole estate in the premises by lease and release to B., and his heirs, reserving rent to A., his executors, administrators, and assigns, with a proviso that on non-payment, A., and his heirs might re-enter, and B. covenanted to pay the rent to A., his executors and administrators; the rent was held payable to A.’s executors and not to his heir, on the ground that there was no reversion to the assignor, and the rent was expressly reserved to the executor.” So that in the case of the heir having entered, he would have been only trustee for the executor.

If a testator be a lessee, his executor will take the fish, rabbits, deer, and pigeons, as accessory chattels partaking of the nature of their principals, the land, the warren, the park, and the dove house. If an executor succeeds to a lease of land for years, the assets are comprised in the clear profits; but a reversion of a term forms assets, according to its utmost value. And if he renew the lease, that will form assets as well as the old lease. Should an executor be possessed of a term in right of his office, and he purchase the reversion of the freehold, he is accountable for the assets of the term, although it be extinguished; and so also if the executor of the lessee, surrender the lease, it shall be considered as assets, notwithstanding the term is extinguished. A person held a term in right of his wife as executrix, and he purchased the reversion; the term was extinct so far as she was concerned, but it was considered with respect to a stranger, that is, any other person, as assets in her hands. But where an individual, on the marriage of his son, settled a lease for years, on him for life, and on his wife, and then on the issue of the marriage; and the son covenanted to renew the lease, and to assign it on the same trust; and he renewed the lease in his own name, but made no assignment to the trustees and died; the lease was held to be bound by the agreement on the marriage, and that it was not assets, nor liable to his debts, nor of course to his legacies. Neither is a lease for years granted on condition of being void on non payment of rent, which occurs, and the lessee afterwards dies. As little so is a term in the hands of the executor of a cestui que trust.

A term for years held by a testator, cannot be relinquished by his executor, when he has assets, unless he relinquishes the office altogether; but he is bound to continue tenant as long as the term continues, or as long as his funds hold out, if they will not continue the whole term.

A leasehold in Ireland is considered as personalty in the property of an English testator dying in England. A lease granted to A. and his executors, and accordingly to the executors after the death of A., becomes assets. If a lessor also, covenant to renew a lease at request of the lessee, who, however, dies within the term without making the request, but it is made by his executors, the lessor is bound to renew for the legal rights of the deceased survivor to his representatives, whom the law presumes to be another self, and therefore implied although not named.

The grant of the next presentation to an advowson during the life of the grantee does not convey the presentation to his executors if he die before the church becomes vacant, for it is equal to a lapsed legacy.

If rent be reserved on a lease for years, and the rent be in arrear at the time of the lessor’s death, it is assets in the hands of the executor. Trees felled during his life on land held by a lessee, without impeachment of waste, are assets to his executor after his death; but unless they are severed during the term, they belong to the lessor as owner of the freehold.

The executor does not come into any corporeal hereditaments, as leases for years of houses or lands, until he is in actual possession, and they cannot therefore until then be esteemed as assets: the dispossession of incorporeal hereditaments, such as leases of tithes, is constructive, and ensues immediately on taking office; for it is evident that in these there can be no personal entry, and as soon therefore as tithes are set out, however remote the goods may be, he is in legal possession of them; but if the lease be of a rectory, where there are glebe lands as well as tithes, it would seem that he is not in possession of the tithes till he enter upon the lands, which being a corporeal hereditament, gives an opportunity of actual entry.